Forfeiture of Offence Related Property Under the CDSA
“Offence related property” is defined in s. 2(1) of the CDSA as any property
(a) by means of or in respect of which a designated substance offence is committed
(b) that is used in any manner in connection with the commission of a designated substance offence, or
(c) that is intended for use for the purpose of committing a designated substance offence
Section 16(1) of the CDSA provides that where a person is convicted of a designated offence, and the court is satisfied that any property is offence-related property, and that the offence was committed in relation to that property, the court shall order that the property be forfeited.
Section 19.1(3) of the CDSA provides that, if a court is satisfied that the impact of an order of forfeiture would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person convicted, a court may decide not to order forfeiture of the property or part of the property.
Section 19(3) of the CDSA provides for forfeiture of property following conviction. An order for forfeiture of property implies the loss of property and sale by the Crown to realize the value of the property. Section 16(1)(b) specifically provides that the property is to be disposed of by a province or Canada.
Quantifying the amount to be forefeited is not an exact science. A sentencing judge must calculate an amount that is proportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the accused, and all non-financial considerations. A sentencing judge is not to be expected to embark on a detailed accounting of income and expenses related to the property or fluctuations in the property value, especially where no sufficient evidence is presented to the sentencing judge for consideration: R v Rafilovich, 2017 ONCA 634 at para 37